Rules on Planning Commission members both restrictive, rare
A 1994 proposition passed by Austin voters now has Paxton’s eye.
When Austin voters went to the ballot box in the spring of 1994, they were inundated by nearly two dozen proposition questions regarding possible changes to the city’s charter.
One of the 22 items was yet another attempt to establish single-member districts for the Austin City Council. That proposition failed.
So did Proposition 2 2, an amendment that would have prohibited Austin from providing insurance benefits to the domestic partners of city employees regardless of their sex. Voters easily rejected that headline-grabbing proposition, with 62 percent voting no.
The majority of the other proposed amendments were largely characterized as uncontroversial items, changes designed to tidy up the City Charter and bring it in line with state law.
Buried on the May 7 ballot, though, was Proposition 13. Its language called for adding two members to the city’s chief landuse board — the Planning Commission — and mandating that twothirds of the board be “lay members who are not connected with real estate and land development.”
The ballot question garnered little news coverage and sailed to passage with 67 percent of voters in favor.
Twenty-four years later, an alleged violation of that rare provision of Austin’s City Charter has drawn the wrath of Texas Attorney General Ken Paxton, who last week sued eight members
of the all-volunteer Planning Commission. In a filing, Paxton’s office stated that the eight are connected to the real estate business, violating the one-third limit the 1994 charter amendment placed on the 13-member commission.
It was the first time Paxton’s office had ever sued a city land-use board and possibly the only time Paxton has sued a volunteer city commission, according to a spokeswoman for his office.
Of the eight commission members sued by Paxton, three are architects, two are building engineers, one is a retired real estate agent, one is a director of Austin Habitat for Humanity and one is an attorney who works for Travis County, specializing in real estate law.
It’s no secret that the conservative Paxton enjoys challenging Austin’s progressive policies, but many were left scratching their heads over the latest suit, which seemingly endorses a left-leaning provision to force a fight between city attorneys and Paxton’s office.
Some observers remarked privately about how the suit had created the strange bedfellows of Paxton and Fred Lewis, an Austin attorney and staunch progressive who brought the alleged charter violation to the attention of Paxton’s office last year. AURA, a local organization that’s pushing for increased housing density in Austin, said in a news release that Lewis had struck a “Faustian bargain” with Paxton.
The Planning Commission is one of two city land-use boards that make recommendations about rezoning or other land-use issues. It generally hears cases connected to Central Austin, but its members also make recommendations regarding land-use policy. To that end, the board made hundreds of amendments to CodeNext, the comprehensive rewrite of Austin’s land-use rules.
Lewis and others have been complaining about the makeup of the Planning Commission since 2015, when the inaugural members of the 10-1 City Council made their appointments to the board. Lewis wrote letters and set meetings, but nothing changed.
In the past two months, the City Council has taken some actions to address the perceived problems with the board. On May 10, council members approved a resolution that calls for creating a questionnaire for commission appointees to gauge their ties to the real estate business. The council also voted to place a charter amendment on November’s general election ballot that, if approved, would give council members the ability to remove members of the commission.
“My sense,” Mayor Steve Adler told the Statesman, “is the council ought to appoint a Planning Commission board that is clearly in accord with the charter.”
No other large city in Texas has similar occupational restrictions on its land-use boards. In Central Texas, Leander and Kyle both have the same one-third limit as Austin regarding board members with direct or indirect ties to the real estate business or land development. Their provisions appear to be lifted verbatim from Austin’s City Charter, and both were adopted when Leander and Kyle became home rule cities in 1998 and 2000, respectively, after their populations exceeded 5,000 people.
Officials from both cities said that they have never received any complaints about the composition of their planning boards violating the one-third rule.
Georgetown and San Marcos have aspirational guidelines for the membership of their zoning boards that call for diversity, but neither city has any clear mandate about the membership.
Outside of Texas, restrictions on land-use boards appear to be rare as well. Portland, Ore., has strict limitations on its Planning and Sustainability Commission that allow for only two members of the board to be employed by companies that engage principally in real estate sales or development. Further, no more than two members may be engaged in the same occupation, according to the board’s bylaws.
San Francisco, San Jose, Denver and San Diego, though, have no rules regarding eligibility for membership on their equivalents of Austin’s Planning Commission. Seattle does not even have a volunteer board that reviews zoning requests.
So what led Austin to adopt such unusual rules?
In the early 1990s, Austin’s political landscape shifted when many residents erupted over the idea of development along the banks of Barton Creek. In a watershed moment, residents came out in droves to testify in opposition to the plan during an all-night meeting that’s part of City Council lore. Ultimately, the Save Our Springs Coalition triumphed in an initiative election and prevailed in multiple court battles to outmaneuver a City Council that was widely viewed as too closely aligned with real estate developers.
By 1994, a group of City Council members friendly to environmental concerns had joined the dais. Brigid Shea, now a Travis County commissioner, was one of those new-breed council members, elected to office after being a chief organizer for the SOS Coalition.
“We were definitely a reformed council, and people wanted to see Austin’s natural environment protected,” Shea told the Statesman last week.
The city already required that the Planning Commission have a minimum of four “lay members not connected with real estate and development,” but even with the existing rules, the SOS battle had made many on the council wary of developers.
The Planning Commission “was slated very heavily to the builders’ side,” said Bruce Todd, Austin’s mayor in 1994. “So as I recall, we decided to come up with a fair number that would allow all parties to be represented that would be transparent.”
The echoes of that longago fight over Barton Springs can still be heard today in the legal tussle about the Planning Commission’s composition. Bill Bunch, the longtime executive director of the SOS Alliance (the former SOS Coalition), affixed his name to Lewis’ legal complaint regarding the board’s makeup.
Bunch and Lewis also engaged in an all-out war against CodeNext, and some see the challenge to the city’s Planning Commission as a proxy battle against the all-inclusive zoning changes.
In the wake of Paxton’s suit, Lewis said the validity of the Planning Commission’s work for the past three years has been undermined, including its actions regarding CodeNext.
For now, Paxton and Austin’s city leaders await their day in court, sharing some choice comments about each side’s different perspective in the interim.
“You allege that a charter limitation on the number of land developers that can serve on our planning commission would apply to a retired real estate agent, a Travis County government attorney, and an executive director of an affordable housing non-profit,” Adler wrote in an open letter to Paxton Thursday. “Really? There have got to be more important issues for the Texas Attorney General.”